Complainant

Respondent

Parties

Elizabeth Keating

Jason's Chinese Takeaway

Complainant

Respondent

Anonymised Parties

Representatives

The Complainant attended in person and was not represented

The Respondent attended in person and was not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041684-001

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041684-003

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041684-004

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041684-005

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00041684-007

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041684-008

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041684-009

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041684-010

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041684-011

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00041684-012

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00041684-013

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041684-014

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041684-015

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041684-016

22/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041684-017

22/12/2020

The Complainant was employed by the Respondent as a Delivery Driver from February, 2004 until 20 December, 2020 when her employment was terminated. The Complainant worked an average of 13 hours per week and was paid €260.00 per week.

The Complainant claims that the Respondent has contravened the following provisions of the Organisation of Working Time Act 1997 in respect of her employment, namely, Section 14 in relation to payment of the Sunday premium, Sections 19 and 23 in relation to the payment of outstanding annual leave and Section 21 in relation to her public holiday entitlements. 

The Complainant claims that the Respondent made unlawful deductions from her wages in relation to payment in lieu of notice contrary to Section 5 of the Payment of Wages Act 1991 on the termination of her employment.

The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994. The Complainant also claims that the Respondent failed to provide her with written notification in relation to a change to her terms and conditions of employment contrary to Section 5 of the 1994 Act.

The Complainant claims that she was unfairly dismissed from her employment contrary to Section 6 of the Unfair Dismissals Act 1977.

The Complainant claims that she was subjected to discrimination on the grounds of age contrary to Section 8 of the Employment Equality Act, 1998.

The Respondent disputes all of the aforementioned complaints.

CA-00041684-001 – Complaint under the Organisation of Working Time Act, 1997

The Complainant stated that her normal weekly working days were a Wednesday and Thursday up until September, 2020 when her days were changed to Friday and Sunday. The Complainant stated that she was paid €30 for working a 6.5 hour shift on Sundays plus a delivery fee of €1 per mile in respect of every delivery undertaken during her shift. The Complainant stated that she could earn up to €100 in delivery fees on a Friday and Sunday.

The Complainant claims that she wasn’t paid any compensation for having to work on a Sunday and that this obligation was not taken into account in either the shift allowance of €30 or the delivery fees that she earned during her shift. The Complainant claims that the Respondent has contravened Section 14 of the Act in relation to its failure to provide compensation for working on a Sunday.

CA-00041684-003 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent failed to pay her outstanding annual leave entitlements on the termination of her employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that she didn’t take any annual leave during the period from 1 April, 2020 until her employment was terminated on 20 December, 2020 and that she did not receive any payment in lieu of the annual leave accrued during this period from the Respondent.

CA-00041684-004 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 21 of the Organisation of Working Time Act, 1997 in relation to her public holiday entitlements.

The Complainant claims that she was not paid for two public holidays during her period of employment that fell during the cognisable period of this complaint, namely 3 August, 2020 and 26 October, 2020.

CA-00041684-005 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that she did not receive any prior notice or payment in lieu thereof on the termination of her employment on 20 December, 2020. The Complainant stated that she commenced employment with the Respondent on 1 February, 2004 and remained in continuous employment until 20 December, 2020. The Complainant stated that she was informed by the Respondent on 20 December, 2020 that there was no further work available and that the business was closing down with immediate effect.  The Complainant contends that she was entitled to a statutory period of eight weeks’ notice on the termination of her employment. The Complainant claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act, 1991.

CA-00041684-010 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that she did not receive a written statement of her terms and conditions of employment at any point during her period of employment. The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to her employment.

CA-00041684-011 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that her normal weekly working hours were reduced by 2 hours in September, 2020 and that she did not receive any written notification from the Respondent in respect of this change to her terms and conditions of employment. The Complainant claims that the Respondent has contravened the provisions of Section 5 of the Terms of Employment (Information) Act, 1994 in relation to her employment.

CA-00041684-015 – Complaint under the Unfair Dismissals Act, 1977

The Complainant claims that she was unfairly dismissed from her employment by the Respondent on 20 December, 2020. The Complainant stated that she was informed by the Respondent on this date that there was no further work for her, and that the business was closing down. The Complainant stated that she was dismissed on the spot and that the Respondent did not give her any prior notice that her job was in jeopardy.

The Complainant stated that she does not accept that there was a genuine redundancy situation at that juncture and that she witnessed the Respondent’s other delivery driver coming out of the premises to do a delivery on the night following her dismissal and that he remained in employment for a further period of time thereafter. The Complainant stated that the business remained open for a further six weeks after her dismissal when it was transferred to another entity.  The Complainant stated that the business has continued to operate under a different name following the transfer and that other workers who had been employed by the Respondent are still working for the new entity.

CA-00041684-016 – Complaint under the Employment Equality Act, 1998

The Complainant claims that she was subjected to discrimination by the Respondent on the grounds of age in relation to her conditions of employment contrary to Section 8 of the Employment Equality Acts.

The Complainant claims that she was constantly subjected to remarks from the Respondent and members of his family about her age and that she was too old to be working at her age. The Complainant stated that these remarks about her age were made more frequently towards the end of her employment, and she contends that the remarks were used as a means of trying to force her to leave her employment.

CA-00041684-001 – Complaint under the Organisation of Working Time Act, 1997

The Respondent stated that the Complainant commenced working on a Sunday from September, 2020 and that she worked from 5:30 pm to 10:30 pm. The Respondent stated that the Complainant was paid €30 per night and that she was allowed to keep the delivery charge in respect of each delivery that she carried out. The Respondent accepts that the Complainant was not paid any additional premium for working on a Sunday and stated that the Complainant did not request any additional payment for same.

CA-00041684-003 – Complaint under the Organisation of Working Time Act, 1997

The Respondent does not dispute that the Complainant is owed payment in respect of outstanding holiday entitlements that she accrued during her period of employment. The Respondent stated that it offered to pay the Complainant her outstanding holiday entitlements upon the termination of her employment, but she has refused to accept payment thereof. The Respondent stated that it was unsure of the precise amount that the Complainant was owed in respect of outstanding holiday entitlements.

CA-00041684-004 – Complaint under the Organisation of Working Time Act, 1997

The Respondent disputes the Complainant claim that it has contravened the provisions of Section 21 of the Organisation of Working Time Act, 1997 in relation to her public holiday entitlements. The Respondent accepts that the Complainant worked on the two public holidays during her period of employment that fell during the cognisable period of this complaint, namely 3 August, 2020 and 26 October, 2020 but contends that she was paid double pay for working on each of these public holidays. The Respondent stated that it was not in a position to produce the records in relation to the payments made to the Complainant in respect of her public holiday entitlements but contended that the payments were reflected on her payslips for the relevant weeks.

CA-00041684-005 – Complaint under the Payment of Wages Act, 1991

The Respondent disputes the Complainant’s claim that she did not receive any notice prior to the termination of her employment. The Respondent’s owner (Mr. A) stated that he was very friendly with the Complainant and that he informed her approx. two months prior to the termination of her employment that the business would be ceasing its delivery service and that her job would no longer be available.

The Respondent stated that this notification was provided verbally to the Complainant and accepts that the Complainant was not provided with written notice prior to the termination of her employment. The Respondent stated that the business ceased providing a delivery service in December, 2020 and then subsequently closed in April, 2021. The Respondent stated that he has attempted to pay the Complainant her statutory redundancy entitlement, but she has refused to accept the payment.  

CA-00041684-010 – Complaint under the Terms of Employment (Information) Act, 1994

The Respondent disputes the Complainant’s claim that she did not receive a written statement of her terms and conditions of employment at any point during her period of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

The Respondent stated that the Complainant was provided with a written statement of her terms of employment in 2013 following engagement with the National Employment Rights Authority. The Respondent also stated that the Complainant was subsequently provided with an updated contract of employment but that she refused to sign and return this document.

CA-00041684-011 – Complaint under the Terms of Employment (Information) Act, 1994

The Respondent does not dispute that the Complainant’s normal weekly working hours were reduced by 2 hours in September, 2020 and that she did not receive any written notification from the Respondent in respect of this change to her terms and conditions of employment. The Respondent stated that it was necessary to implement the reduction on the Complainant’s normal weekly hours as a result of the imposition of public health restrictions arising from Covid 19.

CA-00041684-015 – Complaint under the Unfair Dismissals Act, 1977

The Respondent disputes the Complainant’s claim that she was unfairly dismissed contrary to the Unfair Dismissals Act, 1977 and submits that her dismissal arose as a result of a genuine redundancy situation. The Respondent stated that the business ceased its delivery service in December, 2020 and that there was no further work available for the Complainant as a delivery driver after that juncture.

The Respondent stated that there had been difficulties with the Complainant’s performance during the latter months of her employment which was having an adverse effect on the ability of the business to continue its delivery service. The Respondent stated that these difficulties with the Complainant’s performance had resulted in customer complaints and poor levels of customer service. The Respondent also stated that a further consideration in the decision to discontinue the delivery services related to concerns for the Complainant’s safety on the basis that she was susceptible to acquiring infection with Covid 19 especially in light of her age.

The Respondent stated that the Complainant and its other delivery driver were both made redundant on cessation of the delivery service in December, 2020 and that the business continued to operate a takeaway service only until it ultimately closed in April, 2021. The Respondent stated that it has made attempts to pay the Complainant’s statutory redundancy entitlements, but she refuses to accept this payment.

CA-00041684-016 – Complaint under the Employment Equality Act, 1998

The Respondent disputes the Complainant’s claim that she was subjected to discrimination on the grounds of age in relation to her conditions of employment contrary to Section 8 of the Employment Equality Acts.

The Respondent denies the Complainant’s assertions that there were comments made to her about her age or that she was too old to be working in the job. The Respondent also denies that such comments were directed at the Complainant as a means to try and force her to leave her employment. The Respondent stated that the Complainant was treated very well during her period of employment and that she was not subjected to discrimination on the grounds of age at any stage during her period of employment.  

CA-00041684-001 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that she was obliged to work every Sunday from September, 2020 for a 6.5 hour shift. The Complainant contends that she wasn’t paid any compensation for having to work on a Sunday and that this obligation was not taken into account in her pay.

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated.

The instant complaint was made to the Workplace Relations Commission on 22 December, 2020. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. from 23 June, 2020 to 20 December, 2020 (i.e. the date of termination of the Complainant’s employment).

The Respondent did not dispute that the Complainant was not paid compensation in respect of working on a Sunday. Therefore, based on the uncontested evidence of the Complainant, I find that the Complainant did not receive compensation in respect of Sunday working during the cognisable period. Accordingly, I find that the Respondent has contravened the provisions of Section 14 of the Act and that the complaint is well founded. 

CA-00041684-003 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent failed to pay her outstanding annual leave entitlements on the termination of her employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that she didn’t take any annual leave during the period from 1 April, 2020 until her employment was terminated on 20 December, 2020 and that she did not receive any payment in lieu of the annual leave accrued during this period from the Respondent. The Respondent did not dispute the Complainant’s claim in relation to her outstanding annual leave entitlements.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(i) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2020/2021 (i.e. 1 April, 2020 to 31 March, 2021) is covered by this complaint.

Having regard to the evidence adduced, I am satisfied that the Complainant worked 494 hours during the annual leave year 2020/21 (i.e. 13 hours x 38 weeks during the period from 1 April, 2020 until her termination of employment on 20 December, 2020) and therefore had accrued an entitlement to payment for 39.52 hours in respect of annual leave entitlements on the cessation of her employment (i.e. 8% of 494 hours worked during 2020/21). The Complainant adduced evidence that she received an average payment of €130 per 6.5 hour shift which included a €30 payment from the Respondent and on average an additional €100 which she was allowed to retain from delivery charges collected during her shift. Therefore, the Complainant’s average weekly wage amounted to €260 per week. The Respondent did not dispute the Complainant’s evidence in relation to her average nightly earnings and was not in a position to provide any records such as payslips to contradict this evidence. In the circumstances, I find that the Complainant was paid an average hourly rate of €20 (i.e. she was paid €260 for working 13 hours per week). I am satisfied that the evidence adduced by the Complainant is that she was not afforded her annual leave entitlements for the annual leave year 2020/21 as required by the Act.

Having regard to the uncontested evidence of the Complainant, I find that the Respondent contravened the provisions of Sections 19 and 23 the Act and that the complaint is well founded. Accordingly, I find that the Complainant was entitled to payment of €790.40 in respect of accrued annual leave entitlements on the cessation of her employment.

CA-00041684-004 – Complaint under the Organisation of Working Time Act, 1997

The next element of the complaint which I must decide relates to the Complainant’s claim that the Respondent has contravened the provisions of Section 21 of the Organisation of Working Time Act, 1997 in relation to her public holiday entitlements. 

In relation to public holiday entitlements, Sections 21 and 22 of the Organisation of Working Time Act 1997 provide as follows:

“Entitlement in respect of Public holidays.

21(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

Section 21(2) provides that an employee may, not later than 21 days before a public holiday, request an employer to determine which option applies under Section 20(1) and notify the employee within 14 days of the public holiday. Section 21(3) provides that if the employer fails to do so the employee is entitled to a paid day off on that day or an additional day’s pay if the proviso to Section 21(1) applies. Section 21(4) provides that the aforesaid provisions apply to part-time workers if they have worked at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

“22(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.”

In the cognisable period covered by the claim (i.e. from 23 June, 2020 to 20 December, 2020) there were two public holidays, namely 3 August, 2020 and 26 October, 2020. The Complainant claims that she did not receive her statutory entitlements as provided for in Section 21(1) of the Act in relation to either of the aforementioned public holidays. The Respondent disputes the Complainant’s claim andcontends that she has received her public holiday entitlements in accordance with the provisions of Section 21 of the Act. I note that the Complainant adduced evidence that she normally worked 13 hours per week (i.e. 6.5 hours on Fridays and Sundays during the cognisable period). I accept the Complainant’s evidence that had worked at least 40 hours during the period of 5 weeks ending on the day before each of the public holidays in question, and therefore she qualified for public holiday statutory entitlements under the Organisation of Working Time Act 1997. I note that the Complainant’s evidence on this point was not disputed by the Respondent.

The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records in relation to any additional day's pay referred to in Section 21(1)(d) provided in each week to each employee concerned. Section 25(4) of the Act provides that the onus of proving, in proceedings before an Adjudication Officer or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

In the instant case, the Respondent failed to adduce any records to confirm that the Complainant was in receipt of her statutory public holiday entitlements. In the circumstances, I find that the Respondent has failed to discharge the burden of proof under the Act that it has complied with the relevant provisions of the Act in relation to the Complainant’s public holiday entitlements during the cognisable period. Accordingly, I find that the Complainant did not receive her statutory public holiday entitlements contrary to Section 21 of the Act.

The next issue that arises relates to the relevant calculation of the Complainant’s entitlements in relation to the public holidays that occurred during the cognisable period.  Section 22 of the Act makes supplemental provisions in relation to public holidays and provides that a day's pay is to be calculated in accordance with Statutory Regulations made for that purpose (S.I. 475 of 1997) entitled Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997. Regulation 5(2) provides that if the public holiday falls on a day on which the employee does not normally work, the appropriate rate is 1/5 of a week’s pay. I am satisfied from the evidence adduced that the Complainant did not normally work on a Monday and accordingly, I find that her public holiday entitlement in such circumstances is 1/5 of a week’s pay, which equates to 2.6 hours pay (i.e. one fifth of 13 hours = 2.6 hours). Accordingly, I find that the Complainant is entitled to a payment of 2.6 hours in respect of each of the two public holidays that fell on a Monday during the cognisable period (i.e. €20 per hour x 2.6 hours = €52 x 2 public holidays = €104). Accordingly, I find that the Respondent has contravened the provisions of Section 21 of the Act and that the complaint is well founded. 

CA-00041684-005 – Complaint under the Payment of Wages Act, 1991

Section 1 of the Payment of Wages Act, 1991 defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including— (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

The Complainant claims that she did not receive any prior notice or payment in lieu thereof on the termination of her employment on 20 December, 2020 and that she was informed by the Respondent on this date that there was no further work available and that the business was closing down with immediate effect. The Respondent disputes the Complainant’s claim in relation to this matter and contends that she was provided with verbal notice two months prior to the termination of her employment that the business would be ceasing its delivery service and that her job would no longer be available.

On balance, I have found the Complainant’s evidence on this matter to be more compelling and I find that she did not receive the appropriate statutory notice from the Respondent prior to the termination of her employment nor did she receive payment in lieu of this entitlement from the Respondent. The Complainant was employed by the Respondent for approx. 16 years and therefore was entitled to a statutory period of eight weeks’ notice prior to the termination of her employment.

Accordingly, I find the Complainant’s claim under the Payment of Wages Act 1991 is well founded and that the Respondent’s failure to pay her in lieu of her outstanding statutory notice entitlement upon the termination of her employment constitutes an unlawful deduction from her wages within the meaning of Section 5 of the Act.

CA-00041684-010 – Complaint under the Terms of Employment (Information) Act, 1994

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

The Complainant adduced evidence that she was not provided with a written statement of her terms and conditions of employment by the Respondent during her period of employment. The Respondent disputed the Complainant’s contention on this matter and adduced evidence that the Complainant was provided with a written contract of employment in 2013 and a further updated version at a later date which she refused to sign.

In considering this matter, I note that the copy of the written contract from 2013 which the Respondent adduced in evidence was not signed by the Complainant. Furthermore, the Respondent was unable to provide a copy of the updated written contract which it claims was subsequently provided to the Complainant. On balance, I have found the Complainant’s evidence to be more compelling on this issue and in the absence of any documentary evidence to the contrary, I accept her evidence in relation to this matter.

Based on the totality of the evidence adduced on this matter, I find that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00041684-011 – Complaint under the Terms of Employment (Information) Act, 1994

Section 5 of the Act provides:

“5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.”

The Complainant claims that her normal weekly working hours were reduced by 2 hours in September, 2020 and that she did not receive any written notification from the Respondent in respect of this change to her terms and conditions of employment. The Respondent did not dispute the Complainant’s evidence in relation to this matter. The Complainant claims that the Respondent has contravened the provisions of Section 5 of the Terms of Employment (Information) Act 1994 by failing to notify her in writing of this change to her terms and conditions of employment.

Section 5(1)(a) of the Act requires an employer to give written notification of a material change to an employee’s terms and conditions within one month of the change taking effect. It was not in dispute between the parties that there was a reduction to the Complainant’s weekly working hours. I am satisfied that this change constituted a material change to the Complainant’s terms and conditions of employment. Moreover, I am satisfied that there was an obligation on the Respondent in accordance with the provisions of Section 5 of the Act to notify the Complainant of this change within one month of the change taking effect.

Having regard to the evidence adduced, it is clear that there was discussion and consultation between the parties in relation to the change to her terms and conditions and that this change was not imposed unilaterally by the Respondent. Notwithstanding the attempts by the Respondent to notify this change to the Complainant, I am satisfied that there was a contravention of Section 5 of the Act albeit that I regard the breach as being at the less serious end of the spectrum and, therefore, I have reflected this in the level of the award. Accordingly, I find that the Respondent contravened the provisions of Section 5 of the Act, and that the complaint is well founded.

CA-00041684-015 – Complaint under the Unfair Dismissals Act, 1977

The next issue for decision in the instant case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

The fact of dismissal was not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason. The Respondent claims that the Complainant was dismissed from her employment by reason of redundancy whereas the Complainant has claimed that the termination of her employment was not attributable to a genuine redundancy situation and that she was unfairly dismissed from her employment.  

In the circumstances, in order to satisfy the burden of proof it is therefore a matter for the Respondent to establish (1) that a genuine redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation.

Section 6(4)(c) of the Act provides that the dismissal of an employee shall be deemed not to be an unfair dismissal if it results “wholly or mainly” from the redundancy of an employee. It should be noted that Section 6(4) which provides, inter alia, for the redundancy defence, is expressed to be without prejudice to the generality of subsection (1) of Section 6. Therefore, in deciding this matter I am also required to have “regard to all the circumstances” in considering whether the dismissal is unfair.

In considering point number one above, I have taken cognisance of the judgment of the High Court in JVC Europe v Poninsi (2012) E.L.R. 70 where Charleton J. outlined the factors that must be taken into consideration in order to determine if a dismissal occurred as a result of a genuine redundancy where it was held that: “In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”.

I have also taken cognisance of the decision of the EAT in Daly v Hanson Industries Ltd. UD 719/1986 where it was held that there was “a redundancy element” in the circumstances before it but the dismissal did not result “mainly” from it. In this case the employee was dismissed on the morning after she had given evidence before another division of the EAT in the hearing of a claim by a former General Manager of the company. However, the EAT held that the proximate cause of the complainant’s dismissal was not wholly or mainly related to redundancy.

In the instant case, I note that there was a dispute between the parties on the issue as to whether the termination of the Complainant’s employment occurred as a result of a genuine redundancy situation. The Respondent, on the one hand, contends that the business ceased its delivery service in December, 2020 and that both of its delivery drivers (including the Complainant) were made redundant at that juncture as their positions no longer existed. The Respondent also adduced evidence that the business continued to operate a takeaway service only thereafter until April, 2021 when the business ceased to trade. However, the Complainant on the other hand, disputes the Respondent’s contention that its delivery service was discontinued in December, 2020 and she adduced evidence that the other delivery driver continued to be employed for a period of time thereafter and that other persons with which she worked while under the Respondent’s employment continued to be employed by the new owners of the business.

In considering the question as to whether the Complainant’s dismissal occurred as a result of a genuine redundancy situation, I note that there was a direct conflict of evidence on the key issue as to whether the Respondent discontinued its delivery service in December, 2020 with the result that the Complainant’s position became redundant at that juncture. I have found the Respondent’s oral evidence on this matter to be wholly unconvincing and I note there was no corroborating evidence submitted, either testimonial or documentary, to confirm that this facet of its business had ceased at the material time in question. On balance, I have found the Complainant’s evidence on this matter to be more compelling and I accept her evidence that she witnessed the other delivery driver carrying out this role for the Respondent for a period of time after her dismissal.

In the circumstances, I am satisfied that there were factors unrelated to redundancy which resulted in the Complainant’s dismissal and therefore, I find that the Respondent has failed to establish that the Complainant’s dismissal was “wholly or mainly” attributable to redundancy. In coming to this conclusion, I have taken into consideration the Respondent’s evidence that there had been difficulties with the Complainant’s performance in the period prior to the termination of her employment. The Respondent also adduced evidence that it had concerns for the Complainant’s health and wellbeing arising Covid 19 on the basis of her age and the increased risk to her health in the event that she contracted the disease.

Having regard to the totality of the evidence adduced, I find that the aformentioned issues were significant factors in the Respondent’s decision to dismiss the Complainant from her employment as a delivery driver at the material time in question. I find that the Respondent attempted to invoke the reason of redundancy as a “cloak” to terminate the Complainant’s employment and that having regard to all the circumstances the Respondent has failed to establish that there were substantial reasons to justify her dismissal. Accordingly, I find that the Complainant was unfairly dismissed from her employment and that the claim under the Unfair Dismissals Acts is well founded.

CA-00041684-016 – Complaint under the Employment Equality Act, 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.             Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”.  Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows – “as between any 2 persons …. that they are of different age”.

Section 8(6) of the Acts provide as follows:

“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The issue for consideration by me is whether or not the Complainant was subjected to discriminatory treatment on the grounds of age in relation to her conditions of employment. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

The Complainant claims that she was frequently subjected to remarks from the Respondent and members of his family about her age and that she was too old to be working at her age. The Complainant stated that these remarks about her age were made more frequently towards the end of her employment, and she contends that the remarks were used as a means of trying to force her to leave her employment. The Respondent disputes that any such comments were made to the Complainant related to her age or that she was subjected to any discriminatory treatment on the grounds of age during her period of employment.

Having regard to the totality of the evidence adduced, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different age were or would have been treated more favourably than her in relation to the matters which he has sought to rely upon in the context of the instant complaint. The Complainant has failed to adduce any significant evidence to support her claims that the alleged treatment was discriminatory on the ground of age but rather has essentially relied upon supposition and assertion in support of these claims. 

In coming to this conclusion, I have found the Respondent’s evidence in relation to these matters to be more compelling and I find that the owner of the Respondent (Mr. A) and his son (Mr. B) both adduced very credible evidence that they did not engage in the making of the alleged discriminatory remarks towards the Complainant or witness any such treatment of by other members of staff during her period of employment. In the circumstances, I accept the Respondent’s evidence that the Complainant was not subjected to any less favourable treatment in relation to the matters complained of on account of her age.

Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of race in relation to her conditions of employment within the cognisable period of this complaint. Accordingly, I find that the Respondent did not discriminate against the Complainant on the age ground contrary to Section 8 of the Acts and that her complaint fails.

CA-00041684-001 – Complaint under the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint made pursuant to Section 14 of the Organisation of Working Time Act, 1997 is well founded, and in accordance with the provisions of Section 27 of the Act, I order that the Respondent should pay the Complainant the sum of €300.00 in compensation for the effects of the contravention of Section 14 of the Act.

CA-00041684-003 – Complaint under the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint pursuant to Section 19 of the Act is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Sections 19 and 23 of the Act. I order the Respondent to pay the Complainant:

-          €790.40, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2018/19, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00041684-004 – Complaint under the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent has contravened the provisions of Section 21 in relation to the Complainant’s public holiday entitlements and that the complaint is well founded. I order the Respondent to pay the Complainant the sum of €104.00 in compensation for the effects of the contravention of Section 21 of the Act.

CA-00041684-005 – Complaint under the Payment of Wages Act, 1991

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €2,080.00 (being the equivalent of eight weeks pay) in unpaid statutory notice entitlements subject to any lawful deductions.

CA-00041684-010 – Complaint under the Terms of Employment (Information) Act, 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant the compensation in the amount of €780.00 being the equivalent of three weeks’ pay in respect of the contravention.

CA-00041684-011 – Complaint under the Terms of Employment (Information) Act, 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent has contravened Section 5 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €260.00   being the equivalent of one weeks’ gross pay in respect of the contravention.

CA-00041684-015 – Complaint under the Unfair Dismissals Act, 1977

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

In accordance with the provisions of Section 7(1) of the Act I am obliged, having listened to the views of the parties as to preferred redress in the event of a finding of unfair dismissal, to determine which of the three forms of redress open to it is most appropriate having regard to the circumstances of this case. In the circumstances, I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. Instead, I take the view that compensation is the appropriate redress in this case.

In assessing the level of compensation to be awarded I note that the Complainant was earning a weekly wage of €260.00 from her employment with the Respondent at the material time of her dismissal. The Complainant adduced evidence that she has been unable to obtain alternative employment following her dismissal and in respect of her efforts to mitigate her losses arising from the dismissal, all of which I have taken into account in deciding the quantum of the award of compensation. Having regard to the foregoing, I deem that an award of €10,000.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from her dismissal. 

CA-00041684-016 – Complaint under the Employment Equality Act, 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Respondent did not discriminate against the Complainant on the age ground pursuant to Section 6(2) of the Acts in terms of her conditions of employment and contrary to Section 8(1) of the Acts.

Organisation of Working Time Act, 1997 – Section 14 – Sunday Premium – Section 19 – Annual Leave – Section 23 – Cessor Pay – Section 21 – Public Holidays – Payment of Wages Act, 1991 – Section 5 – Unlawful Deduction – Payment in Lieu of Notice – Terms of Employment (Information Act, 1994 – Section 3 – Written Statement of Terms and Conditions of Employment – Section 5 – Notification of Changes to Terms and Conditions – Unfair Dismissals Act, 1977 – Section 6 – Redundancy -Employment Equality Act, 1998 – Section 6 – Age Ground – Conditions of Employment